--- title: "Insurance Expert Partly Allowed to Opine on Failure to Communicate" meta: "og:description": "The insurance expert may articulate industry standards but must refrain from providing any legal analysis" "og:title": "Insurance Expert Partly Allowed to Opine on Failure to Communicate" author: "Shuva Guha Thakurta" description: "The insurance expert may articulate industry standards but must refrain from providing any legal analysis" --- # Insurance Expert Partly Allowed to Opine on Failure to Communicate Posted on August 13, 2026 by Shuva Guha Thakurta Plaintiffs Lois Alvarado and Milo Alvarado (together, "Plaintiffs" or "the Alvarados") sued their insurer, Allstate Fire and Casualty Insurance Company ("Defendant" or "Allstate"), after Allstate denied their claim for vehicle damages arising out of an automobile collision involving their daughter, Brianna Alvarado. Allstate sought to exclude the opinions of [John Kezer](https://expertwitnessprofiler.com/expert-witness/John-Kezer/1512817), Plaintiff's insurance industry expert while Plaintiffs sought to exclude the testimony of Defendant's claims-handling expert, [Franklin Patterson](https://expertwitnessprofiler.com/expert-witness/Franklin-Patterson/1569141). ![Insurance Expert Partly Allowed to Opine on Failure to Communicate](https://media.jurimatic.com/images/blog_pic_640X480_2026_08_13T165322_4761.webp) ## Insurance Expert Witnesses [John Kezer](https://expertwitnessprofiler.com/expert-witness/John-Kezer/1512817) represented individuals, business entities, insurers, insurance producers, insurance agencies, and self-insured entities across a broad spectrum of matters which included, and continues to include assistance with claims, denials of claims, coverage questions and issues. Kezer also served as a consulting, as well as a testifying, expert witness in a number of engagements for Plaintiffs and for Defendants. [Want to know more about the challenges John Kezer has faced? Get the full details with our Challenge Study report](https://expertwitnessprofiler.com/order/add?eId=1512817&pId=3). [Franklin D. Patterson](https://expertwitnessprofiler.com/expert-witness/Franklin-Patterson/1569141) has more than 40 years of work in the insurance defense/litigation field. Patterson's practice for that entire time has focused on the handling of insurance matters and litigating insurance related cases. This includes advising the State’s largest insurers on all facets of claims handling, evaluating claims both before and after initiation of litigation, negotiating and settling such claims, and if settlement cannot be reached, taking them to a jury trial. [Get the full story on challenges to Franklin Patterson’s expert opinions and testimony with an in-depth Challenge Study](https://expertwitnessprofiler.com/order/add?eId=1569141&pId=3). ## **Discussion by the Court** ### **A. Motion to Exclude Kezer** #### **Opinion 1** Kezer's report contains six primary opinions and then concludes with seven additional options. Allstate presents its arguments in an opinion-by-opinion fashion. **Opinion 1: "In my opinion, and as is supported further by the chronology of its handling of the claim as becomes even more clear when one considers my analyses and comments below, it appears that Allstate misrepresented that it would work to resolve the claim 'quickly and fairly' which did not meet or satisfy the requirements of subsection (I) of [Colorado's Unfair Claims Settlement Practices Act ('UCSPA')] cited above."** Allstate argued that this opinion should be excluded because Kezer "states that [the UCSPA] applies to this case," and it is "this Court's decision regarding what, if any, sections of the UCSPA apply in this case," and "an expert's opinion regarding the applicable law is impermissible." However, it is well-established that the UCSPA can provide evidence of industry standards, and the Court sees no issue with Kezer opining about industry standards (or Allstate's compliance therewith) through the lens of the UCSPA. Kezer will not, however, be permitted to opine that Allstate violated the UCSPA. Alternatively, Defendant contended that Kezer "does not accurately cite" the statute because the law "does not contain a subsection that states claims shall be resolved 'quickly and fairly,' so " Kezer's apparent summary of the law . . . is grossly deficient" and "misleading." Respectfully, this argument misstates Kezer's opinion, which clearly quotes the "quickly and fairly" language from a letter Allstate sent to Plaintiffs—not the UCSPA. Finally, Defendant argued that Kezer's analysis omits disputed facts that might be favorable to Allstate. Defendant contended that Kezer's opinion, "relying only on the facts most favorable to the Plaintiffs, is inadmissible," but it does not provide the evidentiary basis on which it believes the opinion is inadmissible. To the extent Defendant suggests that Kezer's opinions were formed based on an incomplete review of the record, the Court declined to exclude his opinions under [Rule 702](https://www.law.cornell.edu/rules/fre/rule_702#:~:text=Rule%20702%20sets%20forth%20the,is%20a%20relatively%20narrow%20inquiry.). #### **Opinion 2** **Opinion 2: "In my opinion, Allstate did not meet or satisfy the insurance industry requirement set forth in"** [Dunn v. American Family Insurance, 251 P.3d 1232 (Colo. App. 2010)](https://caselaw.findlaw.com/court/co-court-of-appeals/1546140.html). Defendant argued that this opinion should be excluded because it assumes _Dunn_ "applies" in this case, but "only the Court will determine if _Dunn_ applies." The Court respectfully disagrees. Generally, "referencing industry standards—some of which are derived from case law—does not constitute improper legal-conclusion testimony." Kezer may articulate the industry standard derived from caselaw. Any such opinions do not necessarily amount to a legal conclusion that _Dunn_ "applies" in this case. He may not, however, provide any legal analysis or commentary regarding _Dunn_. Allstate also argued that the opinion should be excluded because Kezer "mistakenly summarizes" the holding of _Dunn_. In his report, Kezer frames the "holding" of _Dunn_ as a ruling that "every insurer has a duty to promptly and effectively communicate with anyone it was reasonably aware had or legitimately needed information pertaining to the handling of a claim." According to Allstate, _Dunn_stands for the narrower principle that an insurer has a duty "to adequately and promptly communicate in the course of investigating and handling [the insured's] claim." The Court did not necessarily agree with Allstate's argument, as the _Dunn_ court articulated the insurer's duty in a broad and a more specific way. With that said, while Kezer may articulate insurance industry standards and present his opinions in that context, he will not be permitted to opine about whether Allstate owed any legal duty to Plaintiffs. Nor will the Court permit Kezer to interpret the _Dunn_ case before the jury, as any such opinion would improperly "direct the jury's understanding of the applicable legal rights and obligations of the parties" and may ultimately confuse the jury. The Court did not outright preclude Kezer from opining that Allstate failed to promptly or effectively communicate with Plaintiffs, but any such opinion must presented within the parameters discussed above and the Court will entertain contemporaneous objections if necessary. #### **Opinion 3** **Opinion 3: "In my opinion, and based upon the chronology of the letters themselves, Allstate did not meet or satisfy the insurance industry standards requiring a prompt investigation cited above."** Allstate's argument that this opinion should be excluded because Kezer "is not permitted to determine the applicable law or instruct the jury on its application," is unpersuasive because Kezer's reference to a statute in support of this opinion does not mean that he is attempting to instruct the jury on the law. Defendant also contended that Opinion 3 is based on nothing more than a typographical error referencing a non-existent Policy provision. The Court disagreed with this reading. To support his opinion that Allstate did not conduct a prompt investigation, Kezer relied on the contents of Allstate's denial letter and Allstate's purported delay in communication with Plaintiffs. The Court will not exclude this opinion. #### **Opinions 4, 5 and 6** **Opinion 4: "In my opinion, Allstate misrepresented the basis for its determination that there was no coverage for the loss to the auto based upon the fact there was no 'Part 6' in the Policy issued to the Alvarados."** **Opinion 5: "In my opinion, Allstate did not meet or satisfy these insurance industry standards."** **Opinion 6: "I leave the elements of proof about all of this to you, but, in my opinion, Allstate's Policy provided comprehensive and collision insurance for the 2012 Ford Fusion for the [collision] caused by Brianna."** Allstate challenged these three opinions together on the basis that they are improper legal conclusions couched as expert opinions. First, as for Opinion 4, the Court is unpersuaded by Allstate's argument. As the Court reads Opinion 4 and its surrounding context, Kezer is opining that Allstate misrepresented the basis for its coverage determination because it cited a non-existent Policy provision in its denial letter. The Court does not find that this limited opinion is an improper legal conclusion or attempts to interpret the Policy, so it will not exclude Opinion 4 at this time. If, however, Kezer were to attempt to expand this opinion at trial and offer any sort of opinion regarding the proper interpretation of the Policy, such opinion would be plainly inadmissible and improper. The Court will also not exclude Opinion 5. As mentioned above, insurance industry experts may opine about whether an insurer did or did not comply with industry standards. Although Kezer cannot opine about whether Allstate violated the law or acted in bad faith, so long as he couches his opinion in the context of industry standards, the opinion will be permitted. With respect to Opinion 6, however, the Court readily agreed with Defendant. Kezer's opinion as to whether the Policy provides coverage is clearly based on his interpretation of the Policy, and this interpretation is contrary to the Court's binding interpretation above. Any such opinion would not only impermissibly be a legal conclusion, but it would also confuse the jury by providing an incorrect statement of the law of this case. #### **Additional Opinions** Allstate argued that additional opinions should be excluded because (1) they improperly state the UCSPA applies to this case or improperly state that [Colo. Rev. Stat. §§ 10-3-1115](https://codes.findlaw.com/co/title-10-insurance/co-rev-st-sect-10-3-1115/)and - 1116 apply; (2) Kezer bases his opinions on a review of "select evidence"; and (3) he does not offer any analysis as to why Allstate's conduct violated industry standards. The Court largely agreed with Defendant. Kezer broadly stated that Allstate failed to comply with an earlier-referenced book's requirements for "Good-Faith Claim Handling," but fails to meaningfully explain what those requirements are or how Allstate failed to comply with them. He only directs the reader to the "last sentence he cited," which is a cursory statement that, in the book, "under the heading 'Unbiased Investigation' the chapter includes the following: 'Investigations should seek to discover the facts and consider all aspects of the claim in order to reach an impartial decision.'" But Kezer did not expand on this argument or explain how Allstate failed to discover facts and/or consider all aspects of Plaintiffs' claim. As a result, the Court will exclude these opinions since Kezer provided no explanation or supporting facts as to why Allstate violated those industry standards. **Opinion 8:** I don't know if Allstate adopted reasonable standards for the prompt investigation of claims arising under insurance policies as required by subsection (III) of the UCSPA which would have been applicable to the claims, but, even if it did, there's no proof it implemented such standards. **Opinion 11:** And, if I haven't made it clear before, it appears to me that Allstate failed to provide a reasonable explanation of the basis in the Policy in relation to the applicable facts or applicable law to the Alvarados (as required by subsection (XIV) of the UCSPA[)]. However, the Court will not exclude Opinions 8 or 11. Although these opinions are not supported by a robust explanation, the Court finds that, when read in conjunction with Kezer's similar, more developed opinions, they contain sufficient explanatory support. ### **B. Motion to Exclude Patterson** Finally, Plaintiffs sought to exclude the testimony of Defendant's claims-handling expert, Franklin Patterson. They argued primarily that Patterson's opinions amount to impermissible legal conclusions. The motion to exclude Patterson was filed on November 21, 2025. The Court's Civil Practice Standards state that "unless otherwise ordered, all motions filed under [Federal Rule of Evidence 702](https://www.law.cornell.edu/rules/fre/rule_702#:~:text=Rule%20702%20sets%20forth%20the,is%20a%20relatively%20narrow%20inquiry.) . . . shall be filed no later than thirty (30) days after the deadline for disclosure of rebuttal witnesses." In this case, the deadline to disclose rebuttal expert was September 19, 2025. Plaintiffs' Rule 702 motion was therefore due no later than Monday, October 20, 2025. Plaintiffs did not seek or obtain an extension of the Rule 702 motions deadline. Moreover, although Defendant highlights the Motion's untimeliness in its response, Plaintiffs did not file a reply brief and have never addressed the motion's untimeliness. They have thus not demonstrated good cause to extend the Rule 702 motions deadline or that the missed deadline was due to excusable neglect. The Court denied the motion to exclude Patterson as untimely. However, mindful of the Court's gatekeeper role, the Court has reviewed the motion to exclude Patterson. Defendant is expressly advised that, consistent with this Court's rulings on the motion to exclude Kezer, Patterson will not be permitted to opine that Allstate acted reasonably or in good faith (or that Allstate did not act in bad faith); opine about the existence of legal duties or Allstate's compliance therewith; or attempt to instruct the jury on the law. ## **Held** - The Court granted in part and denied in part Defendant Allstate's motion to exclude the testimony of Plaintiffs' expert John Kezer. - The Court denied Plaintiffs' motion to exclude the testimony of Defendants' expert Franklin Patterson. ## **Key Takeaway** In insurance cases, courts often hold that an expert may not testify that an insurance company did or did not act in bad faith or did or did not act reasonably, as such opinions amount to impermissible legal conclusions. Even so, an industry expert may opine about whether an insurer complied with industry standards. ## **Case Details:** | Case Caption: | Alvarado V. Allstate Fire And Casualty Insurance Company | | --- | --- | | Docket Number: | 1:24cv1281 | | Court Name: | United States District Court, Colorado | | Order Date: | August 10, 2026 | --- ## **You Might Also Like** ![Human Factors Expert Not Allowed to Opine on the Safety of the Flooring](https://media.jurimatic.com/images/blog_pic_640X480_2026_08_13T192049_954.webp) [**Human Factors Expert Not Allowed to Opine on the Safety of the Flooring**](https://expertwitnessprofiler.com/insurance-expert-partly-allowed-to-opine-on-failure-to-communicate/human-factors-expert-not-allowed-to-opine-on-the-safety-of-the-flooring)![Insurance Expert Partly Allowed to Opine on Failure to Communicate](https://media.jurimatic.com/images/blog_pic_640X480_2026_08_13T165322_4761.webp) [**Insurance Expert Partly Allowed to Opine on Failure to Communicate**](https://expertwitnessprofiler.com/insurance-expert-partly-allowed-to-opine-on-failure-to-communicate/insurance-expert-partly-allowed-to-opine-on-failure-to-communicate)![Economics Experts Not Allowed to Opine on Pecuniary Damages](https://media.jurimatic.com/images/blog_pic_640X480_2026_08_12T150127_262.webp) [**Economics Experts Not Allowed to Opine on Pecuniary Damages**](https://expertwitnessprofiler.com/insurance-expert-partly-allowed-to-opine-on-failure-to-communicate/economics-experts-not-allowed-to-opine-on-pecuniary-damages)![Computer Forensics Expert Was Not Allowed to Opine on Forensic Tools](https://media.jurimatic.com/images/blog_pic_640X480_2026_08_11T195723_3131.webp) [**Computer Forensics Expert Was Not Allowed to Opine on Forensic Tools**](https://expertwitnessprofiler.com/insurance-expert-partly-allowed-to-opine-on-failure-to-communicate/computer-forensics-expert-was-not-allowed-to-opine-on-forensic-tools)![Vocational Rehabilitation Expert Was Allowed to Opine on Surgery Costs](https://media.jurimatic.com/images/blog_pic_640X480_2026_08_11T181928_815.webp) [**Vocational Rehabilitation Expert Was Allowed to Opine on Surgery Costs**](https://expertwitnessprofiler.com/insurance-expert-partly-allowed-to-opine-on-failure-to-communicate/vocational-rehabilitation-expert-was-allowed-to-opine-on-surgery-costs)